Law lords' judgment

Ancient liberties

It is difficult to recall when a minister received such an unenviable baptism as Charles Clarke, in his first day as home secretary yesterday. The ferocity of the law lords' judgment against the catch-all 2001 Anti-terrorism Act - the government's "Guantánamo Bay" law, under which foreign terrorist suspects can be detained without charge or trial - was unprecedented. Remember this was only the second occasion in recent times that the law lords have sat as a panel of nine, rather than the usual five, because of the importance of the issue. They voted eight to one in declaring that detaining people indefinitely on suspicion alone contravened democratic rights and international obligations.

As Lord Hoffman noted, the case called into question "the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention". His conclusion could not have been more unequivocal or blunt: the act was a bigger threat to the nation than terrorism. We agree. It has eroded the very freedoms for which we are supposed to be combating terrorism. Lord Scott went one step further, comparing the act to the "nightmares" associated with France before and during its revolution and the Soviet Union in Stalin's era. The act is abominable, but scale - 16 suspects held - has to be taken into account.

The home secretary's response yesterday was thankfully more measured than his predecessor's ripostes. Instead of berating the judges in inflammatory language, he noted that it was "ultimately for parliament to decide whether and how we should amend the law". He signalled he would be asking parliament in the new year to renew the law, as he is required to do through to 2006 when it lapses under a "sunset clause", but said he would be studying whether it was possible to amend the law to address the concerns raised by the law lords. This was clearly meant to be firm but conciliatory, yet contained a considerable amount of bluff. His department has had months to consider what to do in the event of losing the case. It cannot drag its heels now, not least as the Conservatives intend to move an amendment to a current Home Office bill allowing the suspects to be prosecuted using intercept evidence that led to their arrests.

Mr Clarke should not try to "tough it out" for several reasons, if only because the lawyers representing the imprisoned suspects will not give him that option. They will rightly go back to court if he dallies over their prosecution or release for too long. Four suspects - including two in Broadmoor - have already, according to their lawyers, been made mad by the indeterminate nature of their detention and four more are seriously affected. It was bad enough passing the law, but continuing to defend it after yesterday's judgment would be indefensible. Does he really think this would rally Labour's sagging supporters in the run-up to next year's election?

Another hardline option, extending the current law from foreign suspects to British terrorist suspects too, has been blocked by the judges, who ruled the law was not just discriminatory - by the way it only applied to foreigners - but also disproportionate - going far beyond what was needed to meet the current terrorist threat. It is not just the law lords who have called for the scrapping of this law's draconian powers, but a joint parliamentary committee of privy counsellors set up by David Blunkett last year. It is time the suspects were prosecuted, or released and kept under strict surveillance.

Britain faced two decades of Irish terrorism without resorting to such oppressive powers. There is much greater technological capacity today for keeping people under surveillance than 20 years ago. Let us use it.